Delhi District Court
Sh. Meer Singh @ Meeru vs Sh. Raj Kumar on 24 December, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CS No: 255/11
Unique Case ID No. 02405C0073662010
Sh. Meer Singh @ Meeru
S/o. Sh. Sundu
R/o. Main Road, Jharoda Kalan
New Delhi110072 ... Plaintiff
Versus
Sh. Raj Kumar
S/o. Sh. Sukhbir Singh,
R/o. RZ38, Vinoba Enclave,
30 Feet Road, CRPF Camp,
Jharoda Kalan,
New Delhi110072 ... Defendant
Date of Institution: 24.04.2010
Date on which judgment was reserved: Not reserved
Date of pronouncing judgment: 24.12.2011
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT,
DAMAGES/MESNE PROFITS AND PERMANENT INJUNCTION
J U D G M E N T
Meer Singh @ Meeru vs. Raj Kumar. 1 of 39
CS No.255/11
1. The suit shall be decided by this judgment.
Version of plaintiff
2. The plaintiff has stated in the plaint that he is the owner of a shop at property no. 18, Vinoba Enclave, Main Bahadurgarh Road, CRPF Camp, Jharoda Kalan, New Delhi shown in red colour in the site plan attached with the plaint (hereinafter referred to as "the suit property"). He has stated that the defendant was inducted as a tenant at a monthly rate of rent of Rs. 2,000/ excluding electricity and other charges. The tenancy commenced in January, 2005. It is further pleaded that the tenancy was oral and no document was executed by the parties.
3. The plaintiff has averred in the plaint that rent of the suit property was enhanced from time to time. In January, 2007, the rent was enhanced to Rs. 2,500/ per month. From January, 2010 the rent was enhanced Rs. 3,500/ per month excluding electricity and other charges. The defendant used to pay the rent in advance i.e. by the first week of each month. It is stated in the plaint that the defendant repeatedly defaulted in payment of rent. From February, 2010 onwards, the defendant completely stopped paying rent to the plaintiff. The defendant also ceased to pay electricity charges. The defendant thereafter filed a civil suit against the plaintiff seeking permanent injunction restraining his dispossession. In the said suit, Meer Singh @ Meeru vs. Raj Kumar. 2 of 39 CS No.255/11 the plaintiff undertook not to forcibly dispossess the defendant. The said suit was accordingly disposed off on 16.04.2010 by the Court of Ld. Administrative Civil Judge, Delhi. The defendant failed to clear arrears of rent and electricity charges despite requests of the plaintiff. The plaintiff terminated the tenancy of the defendant by legal notice dated 03.03.2010, which was duly served upon the defendant by registered post and UPC.
4. It is further pleaded in the plaint that after 31.03.2010, the occupation of the defendant became illegal and the defendant stood liable to pay damages for use and occupation of the property at the rate of Rs. 5,000/ per month, which is the prevailing market rate of rent. The defendant however failed to vacate the premises despite service of legal notice. The defendant also threatened to create third party interest in the suit property. It is also averred in the plaint that the suit property is not governed by the Delhi Rent Control Act.
5. On the basis of these averments, the plaintiff has prayed for recovery of possession of the suit property, recovery of arrears of rent and damages and permanent injunction restraining the defendant from creating third party interest in the suit property. Version of the defendant
6. The defendant filed written statement. In his written statement, he stated that the plaintiff has not approached the court with clean Meer Singh @ Meeru vs. Raj Kumar. 3 of 39 CS No.255/11 hands and has concealed the true facts from the court. It is stated that the plaintiff has no cause of action to institute the suit. The defendant has also stated that the suit is a counterblast of the suit titled as 'Raj Kumar Vs. Meer Singh @ Meeru' bearing suit no.12/10 which was decided by the court of Ld. Administrative Civil Judge, Delhi on 16.04.2010. The defendant has denied that he was inducted as tenant in the suit property in January, 2005 at the monthly rate of rent of Rs. 2,000/. According to the defendant, he is a tenant in the suit property since July, 2001. The defendant has further stated that the plaintiff has received refundable security of Rs. 40,000/ from the defendant for which the plaintiff has not issued any receipt. According to the defendant, in July, 2001, monthly rate of rent was fixed at Rs. 600/ excluding other charges. The rent was increased from time to time and the rent lastly was Rs. 950/ per month excluding other charges. The defendant has stated that although he has been regularly paying rent, the plaintiff has not been issuing receipt to him despite requests. The defendant has denied that in January, 2010 the rent was enhanced to Rs. 2,500/ per month and that in January, 2010 rent was increased to Rs. 3,500/ per month. It is further averred on behalf of the defendant that he has even tendered rent by way of money orders and yet the plaintiff has refused to receive it. The defendant has denied that he Meer Singh @ Meeru vs. Raj Kumar. 4 of 39 CS No.255/11 has not been paying rent to the plaintiff since February, 2010. The defendant has stated that since February, 2010, the plaintiff has been pressurizing the defendant to vacate the suit property or else to pay exorbitant rent of Rs. 1,500/ per month. The plaintiff also threatened to forcibly remove the defendant from the suit property. The defendant has referred to two complaints made to the police in this behalf. The defendant denied having received legal notice dated 03.03.2010 whereby the tenancy was purportedly terminated. According to the defendant, he continues to be entitled to occupy the suit property. The defendant has denied that the plaintiff is entitled to receive damages or mesne profits for illegal use and occupation of the property. The defendant also denied that the property could fetch monthly rent of Rs. 5,000/ per month. According to the defendant, the plaintiff is not entitled to recover any sum of money from the defendant.
Statements of parties recorded under Order X of Code of Civil Procedure.
7. Statement of the plaintiff as well as the defendant was recorded by the Ld. Predecessor of the court on 01.10.2010. The plaintiff stated that he had inducted the tenant in the year 2005 and had not taken any security from him. He also reiterated the contents of the plaint relating to the rate of rent. He also stated that he had never issued Meer Singh @ Meeru vs. Raj Kumar. 5 of 39 CS No.255/11 any rent receipt to the defendant and that he had received rent of Rs. 3,500/ per month from the defendant in January, 2010. He also stated that the defendant has not being paying rent since February, 2010. He further stated that he was informed by his family members regarding a money order but he could not receive the same.
8. In his statement recorded under Order X of Code of Civil Procedure, the defendant maintained the stand taken by him in the written statement. He further elaborated the manner in which the rent was increased from time to time. He also stated that he had sent the sum of rent at the rate of Rs. 950/ from February, 2010 to September, 2010 through money order which was refused by the plaintiff.
Issues
9. After completion of pleadings, issues were framed by the court by order dated 22.03.2011 as follows :
1. Whether the plaintiff is entitled to recovery of possession, as prayed? OPP;
2. Whether the plaintiff is entitled to recovery of arrears of rent, as prayed? OPP;
3. Whether the plaintiff is entitled to damages/mesne profits, as prayed? OPP;
Meer Singh @ Meeru vs. Raj Kumar. 6 of 39 CS No.255/11
4. Whether the plaintiff is entitled to permanent injunction, as prayed? OPP; and
5. Relief.
Plaintiff's evidence
10.The plaintiff adduced evidence in support of his case. He examined himself as PW1. He tendered his affidavit Ex. PW1/A in evidence on 29.03.2011. In his affidavit, he reiterated the averments made in the plaint. He identified the following documents :
a. Site plan as Ex. PW1/1;
b. Legal notice dated 03.03.2010 as Ex. PW1/2;
c. Postal receipt as Ex. PW1/3; and
d. UPC as Ex. PW1/4.
11. The witness was crossexamined on behalf of the defendant. In his crossexamination, the plaintiff stated that the tenancy was oral and that no rent receipt was issued by him to the defendant. He denied that the defendant was inducted into the property in July, 2000. He also denied having received security of Rs. 40,000/ on the inception of tenancy. He also denied that the monthly rent fixed in July, 2001 was Rs. 600/. He stated that the rent was enhanced from time to time. He denied that the last rate of rent was Rs. 950/ per month. He stated that the monthly rate of rent has not been Meer Singh @ Meeru vs. Raj Kumar. 7 of 39 CS No.255/11 enhanced in writing. He also stated that rent has been paid by the defendant upto the month of January, 2010. He denied that the defendant had offered to pay monthly rent to him for the month of February, 2010 or that he had declined the offer. He also denied that on refusal to accept rent for the month of February, 2010, the defendant sent it to him through money order. He also denied that he has been refusing to accept rent sent to him through money order from time to time. He denied the suggestion that legal notice sent by him was not received by the defendant. He stated that the sum being paid by the defendant is less than the prevailing rent in the vicinity. He admitted that the roof of the suit property was damaged. He stated that Rs. 3,500/ was the monthly rent of the suit property. PW1 was discharged.
12.The plaintiff then examined Mr. Ranbir as PW2. PW2 Mr. Ranbir tendered his affidavit in evidence on 29.03.2011. He deposed in his affidavit that he is running a shop adjacent to the suit property. He also stated that he was inducted as tenant in his shop in April, 2000 at a monthly rate of rent of Rs. 1,500/ which was agreed to be subjected to enhancement from time to time. The witness deposed that the defendant had been inducted as tenant in the suit property in January, 2005 and that the rent was Rs. 2000/ per month at that time. He also deposed that the witness was paying rent of Rs.
Meer Singh @ Meeru vs. Raj Kumar. 8 of 39 CS No.255/11 5000/ per month to his landlord at the time of deposition, which is the market rate of rent.
13.PW2 was crossexamined on behalf of the defendant. In his cross examination, he stated that the plaintiff is his landlord and that his tenancy was oral. He also stated that no rent receipt has been issued to him. He admitted that he had come to depose at the instance of the plaintiff. He also admitted that he has no receipt to show that he is paying Rs. 5000/ as monthly rent. PW2 further reiterated that the market rate of rent is Rs. 5000/ per month and stated that there is no written proof to show this. He also admitted that there was no document to show that the defendant had been inducted as tenant in January, 2005 and that the rate of rent at that time was Rs. 2000/ per month. He also admitted that rent has not been enhanced in writing by the landlord. PW2 was discharged. Defendant's evidence
14.The defendant examined himself in defence evidence as DW1. He tendered his affidavit Ex. DW1/A in evidence in 14.05.2011. In his affidavit, he reiterated the averments made in the written statement. He identified and relied upon the following documents :
a. Money order receipt for the month of February, 2010 as Ex.
DW1/1;
b. Money order receipt for the month of March, 2011 as Ex.
Meer Singh @ Meeru vs. Raj Kumar. 9 of 39 CS No.255/11 DW1/2; c. Acknowledgment receipt as Ex. DW1/3; d. Report of Post Master as Ex. DW1/4; e. Money order receipt for the month of February, March and April 2010 as Ex. DW1/5; f. Money order acknowledgment receipt as Ex. DW1/6; g. Money order receipt for the month of May as Ex. DW1/7; h. Money order acknowledgment receipt as Ex. DW1/8; i. Money order receipts for the months of June and July as Ex. DW1/9; j. Electricity bill for the month of March 2010 as Ex. DW1/10; k. Electricity bill for the month of May 2010 as Ex. DW1/11; l. Money order receipt for the month of August and September, 2010 as Ex. DW1/12; m. Money order receipt for the month of October, 2010 as Ex. DW1/13; n. Money order receipt for the month of November, 2010 as Ex. DW1/14; o. Acknowledgment as Ex. DW1/15; p. Money order receipt for the month of December, 2010 as Ex. DW1/16; q. Money order receipt for the month of January, February, 2010 Meer Singh @ Meeru vs. Raj Kumar. 10 of 39 CS No.255/11 as Ex. DW1/17; r. Money order receipt for the month of March, 2010 as Ex. DW1/18; s. Electricity bill for the month of September as Ex. DW1/20; and t. Complaint dated 11.01.2010 as Ex. DW1/21.
15.The witness was crossexamined on behalf of the plaintiff. In his crossexamination, he admitted that the address mentioned in the affidavit is his permanent address and that he has received notice issued by this court on the said address. The witness stated that he has not received any notice on the said address in the month of March, 2010. He denied the suggestion that he had not been paying electricity bills regularly. He stated that in the vicinity of the suit property, other shops are located and that there is a hotel in front of the said shop. The witness further deposed that there is a market around the said shop and that a CRPF Camp is situated at a distance of 2025 feet. The witness denied that he had no savings in the year 2001 and that he did not have Rs. 40,000/ to pay as security during the said year. The witness further denied that the monthly rent of the shops in the locality is Rs. 5,000/ per month. He stated that as per his knowledge, the monthly rent should be nearly Rs. 10001200. The defendant further stated that he had paid a sum Meer Singh @ Meeru vs. Raj Kumar. 11 of 39 CS No.255/11 of Rs. 40,000/ as refundable security to the plaintiff in the presence of one Harish. He also stated that he had borrowed the said sum from one Mr. Ram Kumar, which he had repaid in the year 2010.
The witness further denied that he had paid Rs. 4000/ as monthly rent to the plaintiff in January, 2010. The witness further stated that monthly rent was increased from time to time and that the rent was sent to the plaintiff through money order which was returned. DW1 was discharged.
16.The defendant examined Mr. Hoshiyar Singh @ Harish Kumar as DW2. DW2 tendered the affidavit Ex. DW2/A in evidence on 28.05.2011. In his affidavit, DW2 stated that the defendant had given refundable security of Rs. 40,000/ to the plaintiff at the time of inception of tenancy. He further stated that the monthly rate of rent was Rs. 600/ exclusive of other charges. He further stated that the said rate of rent was increased from time to time and lastly it was Rs. 950/ per month. He also stated that there is a tendency of landlords in the locality not to issue any rent receipts to their tenants. The witness further stated in his affidavit that the defendant had been regularly paying rent and other charges. The witness also stated that the suit property is situated in an unauthorized colony and therefore the prevailing rate of rent may be between Rs. 1000/ to Rs. 1,200/ per month.
Meer Singh @ Meeru vs. Raj Kumar. 12 of 39 CS No.255/11
17. DW2 was crossexamined by counsel for plaintiff. He stated in his crossexamination that when he started work in Khoka Market at the age of 1012 years, there were only 1012 shops in the market. The witness stated that at the time of deposition he was 38 years old. The witness further deposed that he had started his own shop which he had taken on rent at the rate of Rs. 600/ per month. He further stated that the annual increment of the rent of the shop is Rs. 50/. He also stated that the rate of rent of the shop lastly was Rs. 1,200/. He further stated that he had vacated the said shop one and a half years prior to his deposition. He stated that he knows the defendant since the year 198586 and that the defendant is his neighbour. He further stated that there had been no transaction between him and the plaintiff. DW2 also deposed that his shop was situated near the shop of defendant and that the said witness had also given a sum of Rs. 40,000/ as security to his landlord. The witness stated that he had received the said money from his parents. He also stated that he has no document to show that he had given the said sum of security and that in his locality nobody issues receipts. He further stated that he was not aware whether other tenants in the locality had given security amount to their landlords. The witness also stated that the defendant had taken the shop on rent in the month of July, 2001. He further stated that the Meer Singh @ Meeru vs. Raj Kumar. 13 of 39 CS No.255/11 present rent of the shop is around Rs. 1,200/ per month. He denied the suggestion that the present market rate of rent is Rs. 5000/ per month. DW2 was discharged. Defence evidence was closed.
18.Final arguments are heard. The record is perused. The issuewise findings are as under :
ISSUE NO.1 "Whether the plaintiff is entitled to recovery of possession, as prayed? OPP".
19.The onus to prove this issue was upon the plaintiff. The plaintiff has sought recovery of possession of the suit property. According to the plaintiff, the defendant had been inducted as tenant in the suit property by an oral agreement and the said tenancy has been terminated by service of legal notice dated 03.03.2010.
20.The defendant, on the other hand, has denied the receipt of legal notice. The defendant has however admitted that he has been a tenant in the suit property.
21.It is the admitted case of the parties that the defendant had been inducted into the suit property as tenant by the plaintiff. Since the defendant has admitted that he had been inducted as tenant by the plaintiff himself, the defendant is estopped from questioning the title of the plaintiff, as laid down in Section 116 of the Evidence Act, Meer Singh @ Meeru vs. Raj Kumar. 14 of 39 CS No.255/11 1872. That the plaintiff is the landlord stands established.
22.The defendant has disputed the rate of rent and the assertions of the plaintiff that he had been defaulting in payment of rent. None of these contentions of the defendant, even if accepted to be correct, affect the entitlement of the plaintiff to recover possession since the plaintiff is not seeking recovery of possession on the basis of breach of conditions of tenancy but on the basis of notice terminating the tenancy. Hence, the aforesaid contentions of the defendant are of no relevance to the present issue and are not required to be determined herein. The only contention of the defendant that merits consideration is whether the notice dated 03.03.2010 Ex. PW1/2 was served upon the defendant and if so, the effect thereof.
23.As is evident from the pleadings, it is not disputed between the parties that tenancy was oral and that the property was leased to the defendant for running his business of stitching clothes. Such oral tenancy is deemed to be a monthtomonth tenancy terminable with fifteen days' notice, as laid down in Section 106 of Transfer of Property Act, 1882. This position of law is clearly borne out from the decision of Hon'ble High Court of Delhi in the case of Deenar Builders Ltd. v. M/s. Khoday Distilleries Ltd. AIR 2000 Del 147. Section 106 of the Transfer of Property Act reads as under :
"In the absence of a contract or local law or usage to the contrary, a Meer Singh @ Meeru vs. Raj Kumar. 15 of 39 CS No.255/11 lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property".
24.According to the plaintiff, the tenancy has been terminated by service of notice in conformity with the aforementioned provision. In support of this contention, the plaintiff has placed reliance on the testimony of PW1 i.e. the plaintiff himself. The plaintiff PW1 has stated in the affidavit Ex. PW1/A that he had sent notice dated 03.03.2010 Ex. PW1/2 which was duly served upon the defendant and which terminated the tenancy. This assertion of PW1 is corroborated by the legal notice Ex. PW1/2 and its postal receipts Ex. PW1/3 and Ex. PW1/4. The genuineness of the receipts Ex. PW1/3 and Ex. PW1/4 has not been questioned by the defendant in the crossexamination of PW1 or in defence evidence. Nothing has been brought on record which could cast doubt on the genuineness Meer Singh @ Meeru vs. Raj Kumar. 16 of 39 CS No.255/11 of the receipts. Hence the said receipts can be relied upon. From the receipts, it is apparent that the legal notice has been sent by registered post and UPC. The address at which the notice has been sent is that of the suit property where the defendant is admittedly residing. Reference in this behalf is made to the crossexamination of the defendant/DW1 wherein he has admitted that he has been permanently residing in the suit property. It is also not the case of the defendant that he was not residing at the said address when the legal notice was dispatched. From the testimony of the PW1, duly corroborated by the legal notice and postal receipts, it is clear that the notice had been sent at the correct address. The defendant has failed to disclose any reason which could have prevented the service of notice upon him. Under Section 114 of Evidence Act, the existence of facts which are likely to have happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration (f) of Section 114. By common course of business, the legal notice would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed.
As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543, a mere bald denial by the defendant of Meer Singh @ Meeru vs. Raj Kumar. 17 of 39 CS No.255/11 service of notice is not sufficient to rebut the presumption under Section 114 of illustration (f) of the Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant.
On this point, the Hon'ble High Court of Delhi has, in the case of Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR 1996 Delhi 32 noted thus:
"From Ex. P1 to P11 it is proved and established that the aforesaid notice dated 12.12.1988 (Ex. P1) terminating the tenancy was dispatched to defendant No. 2 at its registered office and also to the appellant No. 1 and 3 at their addresses at 5, Golf Links, where they were admittedly residing, as is disclosed from the evidence of DW 1/appellant No. 1. In view of the despatch of the said notices to the appellants/defendants individually at their proper addresses now the question arises as to whether a presumption of service of notice could be drawn in favour of the plaintiff or not. The basic law of presumption of service of notice is permitted under the provisions of Section 27 of the General Clauses Act and also under the provisions of Section 114 of the Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918 Privy Council 102, wherein it was held that if a letter properly directed containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan v. Wazir J.V. Chand the Apex Meer Singh @ Meeru vs. Raj Kumar. 18 of 39 CS No.255/11 Court had held that all that a landlord can do is to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged under Section 106 of the Transfer of Property Act having been issued by the plaintiffs to the concerned defendants at their residential address in accordance with law, it can well be presumed under the aforesaid provisions statutory as well as case laws that the said notices have been duly served on the said defendants and therefore, in that view of the letter we do not find any infirmity to interfere with the findings of the learned trial court that the notice terminating the tenancy was duly, properly and validly served on the defendants."
Reference may also be made to the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007 (2) DCR 321 SC in which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of Meer Singh @ Meeru vs. Raj Kumar. 19 of 39 CS No.255/11 business".
It can therefore be safely presumed that the said legal notice was duly served upon the defendant.
25.The legal notice Ex. PW1/2 dated 3.3.2010 states that the defendant shall vacate the suit property by the night of 31.03.2010. The notice was dispatched on 6.3.2010, as evident from postal receipt Ex. PW1/3. The notice clearly afforded fifteen days' time to the defendant to vacate the suit property. The notice satisfies the requirement of Section 106 of Transfer of Property Act, 1882. By way of the said legal notice, tenancy of the defendant stood terminated, in keeping with Section 111(h) of the Transfer of Property Act, 1882. The defendant therefore became liable to hand over the vacant possession of the suit property to the plaintiff.
26.Even if it is assumed that the notice terminating tenancy has not been served upon the defendant, that does not entitle the defendant to continue in the premises as tenant. The tenancy would then stand terminated by deeming the institution of the suit as notice under Section 106 of Transfer of Property Act. This view is fortified by the decision of Hon'ble Supreme Court in the case of M/s Nopany Investments (P) Ltd. Vs. Santokh Singh AIR 2008 SC 673. In that case, it was observed as under:
"In any view of the matter, it is well settled that filing of an eviction Meer Singh @ Meeru vs. Raj Kumar. 20 of 39 CS No.255/11 suit under the general law itself is a notice to quit on the tenant."
Applying the principle laid down in the aforesaid decision, the institution of the instant suit itself amounts to notice of termination of tenancy. Fifteen days having elapsed therefrom, the plaintiff is entitled to recover possession of the suit property from the defendant.
27. The defendant has failed to make out any valid cogent or convincing ground to retain possession of the suit property. The plaintiff is entitled to recover possession of the suit property. The issue is decided in favour of the plaintiff and against the defendant. ISSUE NO. 2
"Whether the plaintiff is entitled to recovery of arrears of rent, as prayed? OPP."
28.The onus to prove this issue was upon the plaintiff. The plaintiff has claimed arrears of rent of Rs. 7000/. According to the plaintiff, the defendant has defaulted in payment of rent for the months of February, 2010 and March, 2010. The rate of rent, according to the plaintiff, at that time was Rs. 3500/ per month.
29.On the other hand, according to the defendant, in the year 2010, the rate of rent was Rs. 950/ per month. The defendant has also stated that he has tendered rent for the months of February, 2010 and Meer Singh @ Meeru vs. Raj Kumar. 21 of 39 CS No.255/11 March, 2010. He has stated that the said rent was not accepted by the plaintiff.
30. It is not in dispute that the plaintiff has not received rent for the months of February, 2010 and March, 2010. This fact has been admitted by both the parties in their respective testimony. According to the plaintiff, the defendant failed to pay rent. As per the defendant, he tendered rent but it was not accepted by the plaintiff. In either event, the fact remains the the plaintiff did not receive rent for the said two months and is entitled to obtain it from the defendant.
31. What remains for determination is the quantum of rent that the defendant had agreed to, and is therefore liable to, pay to the plaintiff. There is no written contract specifying the agreed rate of rent. Tenancy was admittedly oral. No rent receipt was admittedly being issued. Hence, there is no written document to suggest the precise rate of rent. The rate of rent must therefore be determined on the basis of the oral testimony of the witnesses. According to the testimony of the plaintiff/PW1, the rate of rent for the months of February, 2010 and March, 2010 was Rs. 3,500/ per month. This version is sought to be strengthened from the testimony of PW2 Ranbir who has deposed that when the defendant had been inducted as tenant in January, 2005, the rate of rent was Rs. 2,000/ Meer Singh @ Meeru vs. Raj Kumar. 22 of 39 CS No.255/11 per month. On the other hand, the defendant/DW1 has deposed in his affidavit that the monthly rate of rent during the aforesaid months was Rs. 950/. He has derived support from the testimony of DW2 Hoshiyar Singh @ Harish Kumar who has confirmed this assertion.
32. The onus to prove the rate of rent was upon the plaintiff. In order to affirmatively prove the rate of rent, the evidence that the plaintiff adduces must outweigh the evidence of the defendant. In my opinion, the plaintiff has failed to lead overwhelming evidence to prove that the rate of rent during the months of February, 2010 and March, 2010 was Rs. 3,500/ per month. In order to evaluate the testimony of the parties, it is not the number of witnesses (quantity of evidence) but their reliability (quality) that has to be considered. In the present case, it is the oral version of the plaintiff pitted against the version of the defendant. Both witnesses maintained their stand during crossexamination. However, the following is noteworthy :
a) The plaintiff has, throughout the plaint and in his testimony, maintained that the rate of rent was Rs. 3500/ per month during the aforesaid months. However, in crossexamination of DW1, the plaintiff put a suggestion to the defendant that the defendant had paid Rs. 4000/ to the plaintiff as monthly rent during that time. The suggestion was, as expected, denied. This however indicates that the plaintiff is unsure of the precise rate of rent. If the rate of rent Meer Singh @ Meeru vs. Raj Kumar. 23 of 39 CS No.255/11 was Rs. 3500/ per month, the defendant would have not paid Rs.
4000/ to the plaintiff. The stand of the plaintiff as to quantum of rent appears to be inconsistent.
b) On sifting the evidence led by the respective parties, it is noticed that although the plaintiff has examined PW2 Ranbir to depose about the quantum of rent, the said witness has not deposed about the agreed rate of rent after enhancement. PW2 Ranbir has deposed about the rate of rent agreed upon while inducting the defendant as tenant. He has also deposed about the market rate of rent and the rate at which he himself is paying rent. None of these is relevant. For determining the arrears of rent, it is only the agreed rate and not the market rate of rent that is determinative of the quantum. Even if the market rate of rent is higher, a tenant can be directed to pay arrears of rent only at the agreed rate. During the subsistence of a contractual relationship, the rights and liabilities are determined by the terms of contract and not otherwise. Further, the rate at which PW2 is paying rent is irrelevant and the defendant cannot be called upon to pay rent at that rate since the agreement between PW2 and plaintiff is independent and exclusive of the agreement between the plaintiff and the defendant. Moreover, the plaintiff as well as the defendant herein have both stated that the agreed rate of rent was enhanced Meer Singh @ Meeru vs. Raj Kumar. 24 of 39 CS No.255/11 from time to time. That being so, the rate at which rent was agreed to be paid while inducting the defendant as tenant has ceased to be material. The rate of rent which the defendant must be asked to pay shall be the rate prevailing during the months of February, 2010 and March, 2010 and not the initial rate of rent at the time of commencement of tenancy. PW2 has not deposed to the rate of rent prevailing at that time. Therefore, the deposition of PW2 as to the rate of rent is in consequential and does not buttress the case of the plaintiff.
c) While the version of the plaintiff as to the rate of rent prevailing as on February, 2010 and March, 2010 is not supported by any document or other witness, the stand of the defendant is duly supported, corroborated and strengthened by the testimony of an independent witness namely Hoshiyar Singh @ Harish Kumar. DW2 Hoshiyar Singh @ Harish Kumar has deposed that the rate of rent, consequential to enhancement, was Rs. 950/ per month. Nothing could be brought out during crossexamination of DW2 which could render his testimony doubtful as to this fact. The testimony of the defendant/DW1 as well as DW2 Hoshiyar Singh @ Harish Kumar have withstood the test of crossexamination.
The plaintiff has failed to prove, by preponderance of Meer Singh @ Meeru vs. Raj Kumar. 25 of 39 CS No.255/11 probability, that the agreed rate of rent for the months of February, 2010 and March, 2010 was Rs. 3500/ per month.
33.Hence, the plaintiff is entitled to recover arrears of rent from the defendant for the months of February, 2010 and March, 2010 at the rate of rent of Rs. 950/ per month. So computed, the plaintiff is entitled to recover a sum of Rs. 1900/ from the defendant as arrears of rent. In terms of Section 34 of Code of Civil Procedure, plaintiff is awarded pendente lite interest at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realization on the aforesaid sum. The issue is partly decided in favour of the plaintiff and against the defendant. ISSUE No.3 "Whether the plaintiff is entitled to damages/mesne profits, as prayed? OPP".
34.The onus to prove the issue was upon the plaintiff. This court is required to determine whether the defendant shall be called upon to pay charges for use of property, if so, with effect from what date, for what period and at what rate.
35.In my opinion, the defendant is liable to pay charges for use and occupation of the suit property. As demonstrated above, the lease of Meer Singh @ Meeru vs. Raj Kumar. 26 of 39 CS No.255/11 the defendant stood terminated by service of notice and yet the defendant continued to occupy the suit property. For such occupation, he must pay charges to the plaintiff.
36.The next question which needs to be determined is the date with effect from which and the period during which the defendant must pay these charges. The plaintiff has claimed damages/mesne profits from the month of April, 2010 till delivery of possession. The claim for damages is based on unauthorized use of the suit property by the defendant. Admittedly, charges for use of the property during this period were not paid by the defendant. Since the tenancy had been terminated prior to the said period, and consequently the defendant was in unauthorized occupation of the suit property during this period, the plaintiff is entitled to recover mesne profits for the said period, as prayed by him. This inference is strengthened by the decision of Hon'ble Supreme Court in the case of Shyam Charan v. Sheoji Bhai and another AIR 1977 SC 2270, in which it was held that the occupant of a premises is liable to pay mesne profits/damages with effect from the day on which tenancy was terminated. As demonstrated above, the right of the defendant to occupy the suit premises had been terminated by service of legal notice dated 03.03.2010 Ex. PW1/2. The legal notice terminated the tenancy with effect from the midnight of 31.03.2010. The notice was Meer Singh @ Meeru vs. Raj Kumar. 27 of 39 CS No.255/11 dispatched by registered post on 06.03.2010 as evident from the receipt Ex. PW1/3. Having regard to the ordinary course of business, it is reasonable to assume that the notice (which was dispatched from and was destined for Delhi) reached the defendant on or before 15.03.2010. The notice thus granted fifteen days' period to vacate the property. The defendant stood liable to vacate the premises on 31.03.2010. The defendant became an unauthorized occupant and became liable to pay damages for the said unauthorized occupation with effect from 01.04.2010. Hence, it is inferred that defendant is liable to pay mesne profits/damages from 1st April, 2010 till recovery of possession.
37. The quantum of rent/mesne profits is next required to be ascertained. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent.
38.The plaintiff has stated in the plaint that the suit property could easily fetch rent of Rs.5,000/ per month. This assertion is made in paragraph nos. 15 and 16 of the plaint. The assertion has been denied by the defendant. The defendant has however not indicated in his written statement as to what is the market rate of rent. He has Meer Singh @ Meeru vs. Raj Kumar. 28 of 39 CS No.255/11 simply stated the contractual rate of rent as Rs.950/ per month.
39.The plaintiff has led evidence to support his plea that the market rate of rent was Rs. 5000/ per month. He has examined himself as PW1. PW1 has stated in paragraph nos. 14 and 15 of his affidavit Ex. PW1/A that the suit property can easily fetch rent of Rs. 5000/ per month. PW1 was crossexamined by the defendant. However the defendant did not put any suggestion to the plaintiff as to whether Rs. 5000/ per month reflects the fair market rate of rent. The plaintiff has not been questioned about the correctness of the said rate of rent. The defendant has merely asked PW1 whether the property is situated in a regularized or an unauthorized colony. How this has affected the market rate of rent has not been put to the witness. The defendant has further asked the witness as to whether the defendant is paying rent which is less than the prevalent rent in the locality. The quantum of rent being paid by the defendant and its comparison with the prevalent rate of rent does not indicate the extent of market rate of rent. None of these questions have thrown light on the quantum of prevailing rate of rent. The said questions and their responses have not even remotely suggested that the market rate of rent was less than Rs. 5000/ per month. The testimony of the plaintiff/PW1 as to the rate of rent has remained unchallenged during crossexamination. Nothing could be elicited Meer Singh @ Meeru vs. Raj Kumar. 29 of 39 CS No.255/11 during crossexamination which could cast doubt on the assertion of the plaintiff as to the fair market rate of rent. Failure to cross examine the witness implies acceptance of correctness of his testimony on that matter. The defendant is therefore deemed to have accepted that Rs. 5000/ per month is the market rate of rent.
40.The assertion of the plaintiff as to the market rate of rent is strengthened by the testimony of PW2 Ranbir. PW2 has stated in his affidavit Ex. PW2/A that his shop is adjacent to the suit property and that he is paying rent of Rs. 5000/ per month which is as per the prevailing market rate. In his crossexamination, the witness has stated that his landlord is also the plaintiff himself. The suggestion that Rs. 5000/ per month is not the market rate of rent is denied by PW2. The testimony of PW2 has withstood the test of cross examination. There is nothing on record to suggest that the testimony of PW2 is not believable. The deposition of PW2 is convincing and has cogently proved that the market rate of rent of the suit property is Rs. 5000/ per month.
41. The defendant failed to impeach the credit of PW1 and PW2 so as to indicate that the market rate of rent is less than Rs. 5000/ per month. The defendant has also not deposed as to what, according to him, is the fair rate of rent that the suit property can fetch. He has simply stated that the property cannot fetch rent of Rs. 5000/ per Meer Singh @ Meeru vs. Raj Kumar. 30 of 39 CS No.255/11 month. That statement to appears to be unbelievable in view of the following admissions of defendant/DW1 in his crossexamination :
a) That there are three employees working in the shop.
b) That there are five sewing machines installed in the shop.
The above admissions of the defendant indicate that the shop is sufficiently large in size.
c) That there are other shops in the vicinity.
d) That there is a hotel in front of the shop.
e) That there is "market all around".
The above admissions of the defendant show that the shop is situated in a market place and is commercially viable.
42.The extent and location of the suit property, as borne out from the testimony of defendant, controvert his claim that the shop cannot fetch a sum of Rs. 5000/ per month as rent.
43.The other witness of the defendant namely Hoshiyar Singh @ Harish Kumar (DW2) has stated in his affidavit Ex.DW2/A that the prevailing rate of rent may be between Rs. 1000/ and Rs. 1200/ per month. He has explained this by stating that the suit property is situated in a rural area and an unauthorized colony. DW2 was crossexamined by the plaintiff. In his crossexamination, DW2 stated that he has been a tenant in a shop of which the landlord was Mr. Chhattar Singh and that he was lastly paying rent of Rs. 1200/ Meer Singh @ Meeru vs. Raj Kumar. 31 of 39 CS No.255/11 per month. He has further admitted that Mr. Chhattar Singh is his relative. If that is so, the transaction between the witness and is landlord cannot be stated to be at arm's length. The possibility of the rent being less than the market rate owing to the relationship between the contracting parties cannot be ruled out. Moreover, the version of the witness as to the prevailing rate of rent does not assume significance since the witness evidently did not have knowledge of the rent that the other tenants in the locality are paying. The said witness has not explained his source of information of the market rate of rent. One can depose only on facts of which he has personal knowledge. When questioned, DW2 pleaded ignorance of the contractual terms between landlords and other tenants in the vicinity namely M/s. Praveen Tailors, M/s Daleep Electronics, Milan Tailors, Everest Tailor and Puran Electronics. Besides, the claim of DW2 that the suit property can fetch a meagre rent of upto Rs. 1200/ per month is negatived by the location and extent of the suit property. For the aforesaid reasons, the version of DW2 as to the market rate of rent cannot be accepted.
44. Regard must be had to the size of the shop and the fact that it is situated in a commercial area. It is common knowledge that a property existing in a market place and being put to commercial use Meer Singh @ Meeru vs. Raj Kumar. 32 of 39 CS No.255/11 can fetch much more rent than that which is in a residential area. This is notwithstanding the fact that the colony may be unauthorized or earmarked for rural purposes alone. This fact, coupled with the general rise in rental rates in Delhi, can be taken judicial notice of. Reference may be made to the case of Bakshi Sachdev (D) by L.Rs. v. Concord 1993 RLR 563 and Vinod Khanna v. Bakshi Sachdev AIR 1996 Delhi 32 wherein Hon'ble High Court of Delhi held that the damages and mesne profits can be granted at a higher rate than the agreed rate of rent after the expiry of the tenancy and after taking judicial notice of the phenomenal rise in rents in Delhi. At the same time, since there is adequate material to indicate the market rate of rent, mesne profits/damages need not be restricted to the agreed rate of rent, particularly when there is nothing to suggest that the contractual rate of rent was in sync with the market rate.
45.Having regard to the testimony of witnesses, the location and extent of the suit property, it can safely be inferred that the fair market rate of rent would be Rs. 5000/ per month. Admittedly, no charges have been received by the plaintiff for usage of the suit property by the defendant after termination of tenancy. The plaintiff is therefore entitled to recovery of mesne profits/damages at the said rate. In terms of Section 34 of Code of Civil Procedure, plaintiff is also entitled to, and is awarded, pendente lite interest at the rate of 6% Meer Singh @ Meeru vs. Raj Kumar. 33 of 39 CS No.255/11 per annum from the date of institution of the suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realization on the aforesaid sum.
46.The defendant has claimed that he has paid a sum of Rs. 40000/ as refundable security to the plaintiff. However, the defendant has failed to prove that he has made the said payment. This conclusion is drawn on account of the following reasons :
a) Had payment been made by the defendant, he would have been in possession of a receipt or other written acknowledgment.
However, no such document has been placed on record.
b) The source of the said funds has not been satisfactorily explained by the defendant. According to the defendant, he had been inducted as a tenant in the year 2001 (paragraph no.2 of the affidavit Ex. DW1/A of defendant). Further, according to the defendant, he did not have any saving at that time and he had also not received any money from his parents (crossexamination of DW1). DW1 has further stated that he had borrowed the sum of security from one Sh. Ram Kumar at monthly interest of 2 percent and for an unlimited period. It is difficult to believe that one would lend a sum of Rs. 40000/ without asking for security, without executing any document and for an unlimited period. Moreover, the said lender Sh. Ram Kumar has not been examined by the Meer Singh @ Meeru vs. Raj Kumar. 34 of 39 CS No.255/11 defendant so as to testify to the grant of loan. For want of adequate explanation and in absence of any written document to support the said claim, the defendant has failed to overwhelmingly prove that he had paid the said sum of security. He has failed to attain the standard of preponderance of probability and has not been able to outweigh the denial of the plaintiff/PW1 of the receipt of the said sum of security.
c) The defendant has not issued any letter or notice to the plaintiff for recovery of the aforesaid sum. The defendant is aware that the plaintiff is trying to evict him from the suit property. Admittedly, he had also instituted a suit to restrain the plaintiff from forcibly evicting him from the property. Yet, despite a dispute having arisen, he has not send any notice seeking refund of the said security.
d) PW2 Ranbir has deposed about the terms of lease between the plaintiff and the defendant. He did not mention anything regarding payment of security. Yet, he was not crossexamined by the defendant regarding the said payment. The defendant did not put any question to PW2 to suggest that payment of security was also part of terms of lease. It appears that the defendant did not propose to contradict PW2 Ranbir in this regard.
e) DW2 Hoshiyar Singh @ Harish Kumar has stated in his
Meer Singh @ Meeru vs. Raj Kumar. 35 of 39
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affidavit Ex. DW2/A that Rs. 40000/ was paid as refundable security by the defendant to the plaintiff. The plaintiff has proposed to contradict the witness and has suggested to him that the said sum of security was not paid.
For the aforesaid reasons, the defendant has failed to prove that he has given refundable security to the plaintiff. Hence, he is not entitled to set it off against the sum payable to the plaintiff.
47. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.4 "Whether the plaintiff is entitled to permanent injunction, as prayed? OPP".
48.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendant and his family members, attorneys and successors from creating third party interest in the suit property.
49.According to the plaintiff, he had inducted the defendant as his tenant and the defendant is trying to create third party interest in the suit property. This has been reiterated by the plaintiff in his affidavit Ex. PW1/A. Meer Singh @ Meeru vs. Raj Kumar. 36 of 39 CS No.255/11
50.The defendant has, in the written statement, admitted that he is a tenant in the suit property and that the plaintiff is the landlord. This has been maintained by the defendant in his defence evidence i.e. in his own testimony as well as that of DW2 Hoshiyar Singh @ Harish Kumar.
51. It is the admitted case of the parties that the plaintiff is the landlord and the defendant is tenant in the suit property. As such, the defendant has no right to create third party interest in the suit property. He can, and is bound to, surrender possession to the plaintiff alone. This obligation of the defendant can be enforced by the plaintiff by injunction. The plaintiff is therefore entitled to permanent injunction restraining the defendant and his representatives from creating third party interest in the suit property. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5 RELIEF
52.In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant. A decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant possession of the suit property comprising of the shop at property no. 18, Vinoba Enclave, Meer Singh @ Meeru vs. Raj Kumar. 37 of 39 CS No.255/11 Main Bahadurgarh Road, CRPF Camp, Jharoda Kalan, New Delhi shown in red colour in the site plan Ex. PW1/1 to the plaintiff forthwith.
53.A decree for recovery of a sum of Rs. 1900/ as arrears of rent is passed in favour of plaintiff and against the defendant. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6 percent per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6 percent per annum from the date of decree till realization.
54.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff mesne profits/damages computed at the rate of Rs. 5000/ per month from, and including, the month of April, 2010 till the date of decree. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6 percent per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6 percent per annum from the date of decree till realization. This direction shall be executable only after payment of appropriate court fee thereon after setting off the court fee paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
55.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future mesne profits/damages Meer Singh @ Meeru vs. Raj Kumar. 38 of 39 CS No.255/11 computed at the rate of Rs. 5000/ per month from the date of decree till the date on which vacant possession is handed over by the defendant to the plaintiff. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6 percent per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6 percent per annum from the date of decree till realization.
56.A further decree of permanent injunction is passed in favour of the plaintiff restraining the defendant, his family members, attorneys and successors from creating third party interest in the aforementioned suit property.
The plaintiff is entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (Ashish Aggarwal) on 24 December, 2011 Civil Judge1, SouthWest District, th Dwarka Courts, Delhi. Meer Singh @ Meeru vs. Raj Kumar. 39 of 39 CS No.255/11